This book argues that Oliver Wendell Holmes Jr., helps us see the law through an Emersonian lens by the way in which he wrote his judicial dissents. Holmes's literary style mimics and enacts two characteristics of Ralph Waldo Emerson's thought: "superfluity" and the "poetics of transition," concepts ascribed to Emerson and developed by literary critic Richard Poirier. Using this aesthetic style borrowed from Emerson and carried out by later pragmatists, Holmes not only made it more likely that his dissents would remain alive for future judges or justices (because how they were written was itself memorable, whatever the value of their content), but also shaped our understanding of dissents and, in this, our understanding of law. By opening constitutional precedent to potential change, Holmes's dissents made room for future thought, moving our understanding of legal concepts in a more pragmatic direction and away from formalistic understandings of law. Included in this new understanding is the idea that the "canon" of judicial cases involves oppositional positions that must be sustained if the law is to serve pragmatic purposes. This process of precedent-making in a common-law system resembles the construction of the literary canon as it is conceived by Harold Bloom and Richard Posner.

Law is a strange beast. It is often thought of as moral, yet morality and law do not often coincide. It is supposed to encourage individuals to act in accordance with societal wishes, such as the protection of intellectual property encourages someone to invent new products and thereby increase the level of technology, productivity, and economic activity in our economy. Yet law often provides perverse incentives that cause individuals, or even the State, to act in discordant, and therefore inefficient, ways. More than anything else, law in its various forms creates the working rules of an economy, for better or for worse. The popular refrain 'there ought to be a law' is a desire to alter future outcomes when current or past outcomes seem to the public to be inconsistent with their notions of fairness and justice. Regardless, many, if not most, laws applied to our economic system create severe inefficiencies such as minimum wage legislation and rent control laws; these actually serve to deny individuals work and shelter in a haphazard and capricious manner. Law also dictates property rights, yet eminent domain lets the State take it away with seemingly arbitrary compensation to the owner. It is for this reason that workers, employers, managers and others have a stake in understanding the interplay between law and economics and how to evaluate laws to determine whether and how their business property and equity may be impacted by them. It is also incumbent upon individuals to understand the process of rulemaking as a mechanism that can be designed to reduce the transactions costs that cause us to resort to the legal system to resolve disputes. One unique aspect of this book is that it is written with both economists and non-economists in mind. Another difference is that this text does not concern itself with criminal law, which is left to a separate book in the Business Expert Press economics collection. A final difference is that this text discusses the legal organization of businesses as well as tax law from an economics perspective, two items that are not formally treated in other economics of law textbooks.

This is the story of how disputes of all kinds were managed in England between AD 1154 and the first signs of the Common Law, and 1558 when a new period started in the development of the English legal system. Primary sources, including private papers like the "Paston Letters", show how disputes were managed in practice. Mediation and arbitration were then natural and widespread. Their aim was to produce peace through compromise. Parties turned to the community for help: hundred and shire, magnates, city and borough guilds, university, the Church and the Jews. The king's Council and even Parliament offered mediation and arbitration. The scope included disputes not arbitrable today ownership of freehold land, status, even rape, murder and riot. Arbitration centres in London, York and Bristol offered services to all comers. Foreigners brought disputes with no connection to England. In 1484 a labourer, defended his interests in an arbitration arranged by the York authorities. The Mayor of Bristol kept an office open every day to arrange arbitrations. The Privy Council sat on a Sunday morning in February 1549 for that purpose. And women were parties almost as often as men - and occasionally mediators and arbitrators.

Much more than an historical examination of liability, criminal law, torts, bail, possession and ownership, and contracts, "The Common Law" articulates the ideas and judicial theory of one of the greatest justices of the Supreme Court. G. Edward White reminds us why the book remains essential reading not only for law students but also for anyone interested in American history. The text published is, with occasional corrections of typographical errors, identical with that found in the first and all subsequent printings by Little, Brown.

The American system of law has experienced a quiet revolution that has gone largely unnoticed by political scientists and legal scholars. The change that has occurred- the abandonment of the common law foundation on which the American judicial system was built-has important consequences for democratic politics in the United States and abroad. Dismantling American Common Law: Liberty and Justice in Our Transformed Courts tracks the development of the American common law through historical and quantitative analysis and a philosophical inquiry of the founding. Author Kyle Scott seeks to reclaim this lost tradition of common law, which was vital as a legitimizing force and consensus-building mechanism at the American founding and will grow in importance for newly democratizing nations around the world.

Duels and bloodfeuds have long been regarded as essentially Continental phenomena, counter to the staid and orderly British ways of settling differences. In this surprising work of social and legal history, Paul R. Hyams reveals a post-Conquest England not all that different from the realms across the Channel. Drawing on a wide range of texts and the long history of argument about these texts, Hyams shatters the myth of English exceptionalism, the notion that while feud and vengeance prevailed in the lands of the Franks, England had advanced beyond such anarchic barbarism by the time of the Conquest and forged a centralized political and legal system. This book provides support for the notion that feud and vengeance flourished in England long beyond the Conquest, and that this fact obliges us to reconsider the genealogies of both common law and the English monarchy.Moving back and forth between a broad overview of 300 years of legal history and the details of specific disputes, Hyams attends to the demands of individuals who believed that they had been aggrieved and sought remedy. He shows how individuals perceived particular acts of violence and responded to them. These reactions, in turn, sparked central efforts to manage disputes and thereby establish law and order. Respectable litigation, however, never eclipsed the danger of direct action, often violent and physical.

Challenging the accounts of John Henry Wigmore and Leonard W. Levy, this history of the privilege against self-incrimination demonstrates that what has sometimes been taken to be an unchanging tenet of our legal system has actually encompassed many different legal consequences in a history that reaches back to the Middle Ages.
Each chapter of this definitive study uncovers what the privilege meant in practice. The authors trace the privilege from its origins in the medieval period to its first appearance in English common law, and from its translation to the American colonies to its development into an effective protection for criminal defendants in the nineteenth century. The authors show that the modern privilege--the right to remain silent--is far from being a basic civil liberty. Rather, it has evolved through halting and controversial steps. The book also questions how well an expansive notion of the privilege accords with commonly accepted principles of morality.
This book constitutes a major revision of our understanding of an important aspect of both criminal and constitutional law.

Much of our law is based on authoritative texts, such as constitutions and statutes. The common law, in contrast, is that part of the law that is established by the courts. Common law rules predominate in some areas of law, such as torts and contracts, and are extremely important in other areas, such as corporations. Nevertheless, it has been far from clear what principles courts use-or should use-in establishing common law rules. In this lucid yet subtly argued book, Melvin Eisenberg develops the principles that govern this process. The rules established in every common law case, he shows, are a product of the interplay between the rules announced in past precedents, on the one hand, and moral norms, policies, and experience, on the other. However, a court establishing a common law rule is not free, as a legislator would be, to employ those norms and policies it thinks best. Rather, it can properly employ only those that have a requisite degree of social support. More specifically, the common law should seek to satisfy three standards. First, it should correspond to the body of rules that would be arrived at by giving appropriate weight to all moral norms, policies, and experiential propositions that have the requisite support, and by making the best choices where norms, policies, and experience conflict. Second, all the rules that make up the body of the law should be consistent with one another. Third, the rules adopted in past precedents should be applied consistently over time. Often, these three standards point in the same direction. The central problems of legal reasoning arise when they do not. These problems are resolved by the principles of common law adjudication. With the general principles of common law adjudication as a background, the author then examines and explains the specific modes of common law reasoning, such as reasoning from precedent, reasoning by analogy, drawing distinctions, and overruling. Throughout the book, the analysis is fully illustrated by leading cases. This innovative and carefully worked out account of the common law will be of great interest to lawyers, law students, students in undergraduate legal studies programs, scholars interested in legal theory, and all those who want to understand the basic legal institutions of our society.