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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.
The book has recently taken on an eerie relevance as a consequence
of controversial American and British interrogation practices in
the Iraq and Afghanistan wars. In a new introduction, Langbein
contrasts the "new" law of torture with the older European law and
offers some pointed lessons about the difficulty of reconciling
coercion with accurate investigation. Embellished with fascinating
illustrations of torture devices taken from an eighteenth-century
criminal code, this crisply written account will engage all those
interested in torture's remarkable grip on European legal history.
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.
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.
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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