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Our present system of criminal prosecution originated in England in the sixteenth century. Langbein traces its development, which was at its most intense during the reign of Queen Mary. He shows how the common law developed a system of official investigation and prosecution that incorporated the medieval institution of the jury trial. He places equal emphasis on the role of the justices of the peace as public prosecutors. The second half of the book compares the English system with those of the Holy Roman Empire (Germany) and France. He concludes by refuting the popular opinion that the English were strongly indebted to continental models. This is an excellent work of scholarship, exhibiting wide research, erudition and analytical ability. --Joseph H. Smith, Harvard Law Review 88 (1974-1975) 485 JOHN LANGBEIN is Sterling Professor of Law and Legal History at Yale Law School. He has held academic positions at Stanford University, Oxford University, the Max-Planck-Institut fur Europaische Rechtsgeschichte and the Max-Planck-Institut fur Auslandisches und Internationales Strafrecht. Langbein is a member of the American Academy of Arts and Sciences, the International Academy of Comparative Law, the International Association of Procedure Law, and other organizations in the fields of legal history and comparative law. Some of his most distinguished publications and articles include History of the Common Law: The Development of Anglo-American Legal Institutions (2009), Torture and the Law of Proof: Europe and England in the Ancient Regime (1977), and The Supreme Court Flunks Trusts, Supreme Court Review (1991).
In "Torture and the Law of Proof "John H. Langbein explores the
world of the thumbscrew and the rack, engines of torture authorized
for investigating crime in European legal systems from medieval
times until well into the eighteenth century. Drawing on juristic
literature and legal records, Langbein's book, first published in
1977, remains the definitive account of how European legal systems
became dependent on the use of torture in their routine criminal
procedures, and how they eventually worked themselves free of it.
This publication has been the leading casebook in the field for more than 20 years. It is the most authoritative work available on this topic, extensively cited by the Supreme Court and other courts, and in the scholarly literature. Professors Langbein and Stabile have not participated in the preparation of this new edition, but their contributions pervade the entire work. The author team is joined in the Sixth Edition by Professor Andrew Stumpff, a leading practitioner and scholar of pension law. The Sixth Edition adds expanded coverage of the Affordable Care Act, its implementation, and the litigation concerning its validity. It also includes detailed coverage of other recent Supreme Court decisions, including the Windsor decision on same sex marriage, and recent lower court decisions. The Sixth Edition also addresses recent changes affecting benefit plans, including recent developments in the design and administration of 401(k) plans.
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.
The adversary system of trial, the defining feature of the Anglo-American legal procedure, developed late in English legal history. For centuries defendants were forbidden to have legal counsel, and lawyers seldom appeared for the prosecution either. Trial was meant to be an occasion for the defendant to answer the charges in person. The transformation from lawyer-free to lawyer-dominated criminal trial happened within the space of about a century, from the 1690's to the 1780's. This book explains how the lawyers captured the trial. In addition to conventional legal sources, Professor Langbein draws upon a rich vein of contemporary pamphlet accounts about trials in London's Old Bailey. The book also mines these novel sources to provide the first detailed account of the formation of the law of criminal evidence. Responding to menacing prosecutorial initiatives (including reward-seeking thieftakers and crown witnesses induced to testify in order to save their own necks) the judges of the 1730's decided to allow the defendant to have counsel to cross-examine accusing witnesses. By restricting counsel to the work of examining and cross-examining witnesses, the judges intended that the accused would still need to respond in person to the charges against him. Professor Langbein shows how counsel manipulated the dynamics of adversary procedure to defeat the judges design, ultimately silencing the accused and transforming the very purpose of the criminal trial. Trial ceased to be an opportunity for the accused to speak, and instead became an occasion for defense counsel to test the prosecution case.
The lawyer-dominated adversary system of criminal trial, which now typifies practice in Anglo-American legal systems, developed in England in the eighteenth century. Using hitherto unexplored sources from London's Old Bailey Court, Professor Langbein shows how and why lawyers were able to capture the trial, and he supplies a path-breaking account of the formation of the law of criminal evidence.
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